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By Nicolae Trofin

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Intestacy - Update and Considerations

As we know an executor is the person (or people) nominated in a will to deal with someone’s estate after death. Therefore, it follows that if someone does not have a will, they are unable to choose who is going to administer their estate. This would then pass in accordance with the laws of intestacy, and who is able to administer an estate is also governed by the intestacy rules.

Nonetheless, there remains a strict order of who benefits from the estate and by how much, all depending on family circumstances, and the right to manage the estate falls in accordance with this. Therefore, intestacy can cause problems.

What issues can arise from dying intestate?

The person who is legally first entitled to act as administrator may not be willing or able to do so, due to age or ill health, such as an elderly spouse or parent. In this case, steps will need to be taken to pass on the right to manage the estate.

A person needs to be of adultage to act as an administrator(the person who administers an estate without a will).

In the event of minor children, who but for their age would be entitled to act, then someone else will need to act instead.

If someone has a partner, but are not married or in a civil partnership, the partner has no right to manage the estate and no entitlement under the laws of intestacy.

If there is no close family it may be difficult to trace the person(s)entitled to act and/or benefit, let alone gaining their agreement to act, causing delays.

If there is more than one person at the same level of entitlement to manage the estate, they may disagree over who should act if they do not wish to act together, causing disputes.There can be delays in making funeral arrangements, securing property and other assets, and settling debts, if it is not clear who should be dealing with such matters.

Other Inheritance issues to consider

If someone has no family who can inherit under rules, the estate ultimately passes to the Treasury on behalf of Crown, or “the Government” as some people see it.

Friends, unmarried partners, or partners not in a civil partnership, carers, relatives by marriage and charities whom a person may wished to benefit will not.

Family members who a person may not have wanted to have control of, or to benefit from, the estate may end up doing so.

Partners may need to submit a claim for financial provision from the estate, under relevant legislation in either England and Wales, or in Scotland.

Changes to the Laws of Intestacy

The intestacy laws applicable for England and Wales were updated in July 2023, with a single change of the statutory legacy amount being increased to £322,000. For Scotland the amounts remain unchanged, but the rules are more complicated.

As one might expect, spouses, civil partners and children are primarily in line to inherit (there is a prescriptive approach to who gets what), followed by other close relatives in an order of blood relationship.

Overall, the only reason why someone would actively choose not to make a will is if they genuinely had no interest at all in who inherits their estate. In practice, very few people fall into this category, but there still exist some misunderstandings and a degree of superstition perhaps around making a will.

Anyone needs to ask themselves - who do I want to inherit my assets when I die? Once the question has been answered, the solution is simple, make a will to avoid intestacy!

Free consultation no obligation available if you live in Bexhill-on-Sea, Battle, Hastings or anywhere in East Sussex!

This message was added on Friday 19th January 2024

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